TMI Blog2000 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ng inclusion of the freight charges for transporting filled bottles of aerated water from the factory and for transporting empty bottles back to the factory premises; that the Assistant Commissioner allowed the deduction of cost of transportation of excisable goods from assessable value but did not allow the cost of transportation of empty bottles; that finally the Appellate Tribunal vide Order No. 155/91-A, dated 15-3-1991 allowed their appeal for not including the cost of transportation in the assessable value. Subsequently, they filed a refund claim which has been rejected by the Commissioner (Appeals) on the ground that the duty paying documents have not been produced by them and that the refund claim is hit by the doctrine of unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se circumstances, refund claims could be rejected for production of original documents." The learned Counsel further submitted that the remaining amount of refund claims i.e. Rs. 14,06,177.45 pertains to the period from 17-2-1972 to 30-9-1974 during which period the freight charges were included in the assessable value as per the order passed by the Department. He mentioned that no opportunity was given to them by the Asstt. Commissioner to show that the incidence of duty has not been passed on to the customers and if the opportunity is now provided, the appellants will make efforts to prove their entitlement to the refund claim. 3. Countering the arguments Shri P.K. Jain, learned D.R. submitted that the assessee who is claiming the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been disputed by the Revenue that the demand for the period from 1-3-1970 to 16-2-1972 was raised by issuing two DD-2s and the duty was paid by the appellants by debiting to P.L.A. on six different dates. It has been held by the Tribunal in the case of Ester Industries (supra) that where the duty is paid by making debit entries in P.L.A. subsequent to the date of clearance of the goods, presumption of Section 12B of the Central Excise Act to the effect that incidence of duty has been passed on to the buyer will not be attracted. The learned D.R. has also fairly conceded this point. Following the ratio of the Tribunal's decision in the case of Hindustan Tin Works Ltd., referred to above, we hold that non-production of documents by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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